Law in the Internet Society
-- BriannaCummings - 15 Jan 2016 I wanted our conversation to be able to continue so I have moved it here.

I read this as an opinion piece. It doesn't seem to me to aspire to convey new information. I don't think it's self-consciously engaged in presenting an argument, in which there are steps from point to point in a chain of reasoning. I don't find any passages in which the objections that someone thinking differently might raise are acknowledged and addressed. I think the particular opinion at the center of the essay is that the democritization of technology that has led to a very great democritization of opinion—as the equalization of individuals and media entities has proceeded in the Net—has lowered the tone of public debate. This seems to you particularly evident in the rhetoric on one side (not your favored side) of the two-party contest for the Presidency now ramping up.

In the first place, I'm not sure the history bears you out. I wonder if you have ever had occasion to read the newspapers and campaign oratory of, for example, 1864. Barack Obama, much vilified as he is, is not more vilified than was Abraham Lincoln. Mr Trump's form of anti-immigrant rhetoric is grotesquely distasteful in this nation of immigrants, but if you think about the "Know Nothing" anti-immigrant politics of the 1850s---which Mr Lincoln, Salmon P. Chase and other ardent anti-slavery Whigs carefully danced with and around in order to co-opt Know Nothingism into an anti-slavery but not anti-immigrant Republican Party---I think you will find yourself heartened to discover that we have been through, and survived, this form of xenophobia more than once, without "the Internet."

Your discussion of hate speech regulation would suit better our work next term, in the "Computers, Privacy and the Constitution" course, but let me say here that I don't think you've captured the real dispute between the First Amendment and hate speech regulation. The issue isn't First Amendment absolutism. The issue is whether more speech or less speech is the correct response to upwellings of hate or sedition or other anti-social communication. European hate speech regulation comes from statist origins in regimes that always used censorship, from the adoption of printing onwards, to shape opinion. American attitudes in the direction of "more speech" as the remedy for bad speech begin from the absence of any precedent anti-liberal tradition in American culture, as Louis Hartz famously noted more than fifty years ago. Many ways of expressing the American view could be cited, but this one seems most important to me:

If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.

which comes from Thomas Jefferson's first inaugural address. If one adds from the same speech this:

[H]aving banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions.

one has, I think, conveniently located in one place the key propositions from which a response to your opinion might be fashioned, and from which, at any rate, you might take the creative tension necessary for another, richer, draft.

To chime in here, I think an issue to consider is whether the rise of a "personalized" Internet degrades the quality of the democratic forum. There is a lot of evidence out there that the manner in which most users acquire information online -- through social media sites, for example -- tends to reinforce rather than challenge existing belief systems. It can be viscerally satisfying to read news you like and agree with, so users who are not vigilant risk falling into partisan wormholes where they never confront opposing ideas.

I do agree with the above proposition that the best response to hate speech is to force it to stand side by side with reason and truth. The proper question then, in my view, is how do we ensure that hateful and erroneous belief systems are exposed to material that will defeat them.


I think discussion of the solutions law can, or should, bring to the problems you identify. While Trump is a disgusting man, I think he is red herring for this essay. Not much at all of what he says in new in any meaningful way. Does it make sense to focus on the presidential candidates? Electoral politics are certainly interesting with regards to the modern news media, but there have long been hateful demagogues, as you note with reference to e.g. Hitler. In fact, your reference to "other holocausts" might undermine your pondering whether there is something unusual about this cycle in particular.

Re the final paragraph: what propaganda? Is this term to refer just generally to hateful things that candidates say? Would their victory ensure that those outrageous proposals come to being? How would "our generation" stop this from happening in terms of the law?

Textual edit: "have been limits put on free speech in our countries history." --> "countries" should be "country's."

- Gregg

I actually have to disagree with you on one point Gregg, because I do think there is something important to be said about Mr. Trump that may be brought out in a future draft. To me at least, Trump's whole appeal comes from the fact that he is a master of straddling the contours of hidden meaning in a political noosphere dominated by social media. Repeatedly, Trump says stupid and offensive things with a sarcastic wink and a nod, causing Twitter and Facebook to erupt in arguments over what he actually believes. Our side gets offended, while his supporters simply talk about how all the snooty liberals just "don't get it." Donald Trump, after all, is simply a man who says what he believes and is not afraid to talk about all the subjects the "left-wing PC police" would prefer we avoid. According to them, the fact is that politicians need to talk about how immigration is ruining America and how ISIS is scary; parsing words and calling people names merely serve to detract from those conversations.

The effect of this dynamic is that anyone who raises concerns about anything Trump says at the surface level is ostracized from the public forum, simply written off as butthurt and humorless. I find all of this interesting and functionally distinct from previous forms of demagoguery. Donald Trump's candidacy is, at its root, about silencing dissenting minorities (the "cultural establishment," as he would call them) by mocking and laughing at them. I don't really know what that means for free speech and democracy in the Internet Society, but I believe it is relevant and that a thoughtful discussion of Trump is vital to the essay.


Eben – It’s definitely more of an opinion piece than anything else. While Lincoln may have been more vilified than Obama, I think our ability to survive such rhetoric and xenophobia of the past was aided by the lack of internet or other rapid methods of mass communication. When people relied more on newspapers and radio to get their information there was still debate and discourse but it was harder to avoid engaging with your opponents or other schools of thinking. I also think we’re living in a time where professional journalism is in free fall. There is blatant misinformation and outright lies being fed to the general public via “news” networks on the web and TV. The ability for stories to cycle for hours on end without being fact checked has led to entrenched views and illogical debate. For the moment I will concede your point regarding Hate Speech vs. Free Speech as I am sure we will come back to it in this semester’s class.

Shay – I too agree that more speech is probably better than censored speech but I am not hopeful given our current state of affairs that there is a reliable mechanism to expose hateful beliefs to fact-based reason. I do not see how we will force those who regularly tune into Fox News on the one hand or MSNBC on the other to critically engage with one another. I am not seeing this is impossible or does not exist, just that I am not aware of its existence.

Gregg – I think it is very important to focus on Trump and the other presidential candidates. We can debate whether his rhetoric is new (I generally don’t think it is) however, given the sharp decline in the number of people studying history and our generations’ unwillingness to research of fact check candidates I don’t think the newness matters all that much. In light of his continued rise in the polls and growing following throughout the country his words are very meaningful to some and we need to start taking him more serious. I believe the same is true of Ted Cruz who I would argue is actually more dangerous. Propaganda in reference to its dictionary definition – “information, ideas, or rumors deliberately spread widely to help or harm a person, group, movement, institution, nation, etc.” I believe this to be an accurate description of most news/media outlets.


It seems that you are looking at this with a shorter-term outlook than I am, which is probably fair because it seems like you take Donald Trump's chances of actually winning a lot more seriously than I do. To me, the question is less about how do we convert Trump and his supporters over the next three months and more about how do we, over the next 10 to 20 years, foster a society where individuals are more tolerant of one another. Either way though, I think the point about MSNBC and Fox News is sort of a red herring. First of all, based on their ratings, I don't think either of those channels reach nearly enough people, particularly our age, to have anything more than an incremental effect on political outcomes, particularly compared to, say, Facebook. Second, to my point about looking at things long-term, I think we both agree that our society is undergoing a period of great transition, and I would add that a byproduct of this transition will be that more and more people will be getting their news online rather than through cable. So the long-term issue, if we agree that more speech is the solution, is whether we can structure the Internet in ways that foster engagement between people of different viewpoints and perspectives. To that question, I would point you to our present conversation, which to me at least is persuasive evidence that such an Internet is indeed possible.


I appreciate these responses to the Trump point, the importance of focusing on presidential candidates, and their generous contributions to suppressing marginalized voices; but shouldn't then the focus be more on the media networks that shower him with attention, such as in your section on the 24-hour media cycle?


Interesting discussion. Brianna, is it your view that the degradation of public debate is a novel phenomenon, aided by the internet? Christ, arguably journalism has long been terrible - full of incorrect information and constantly manipulated by vested interests... There is a reason journalists sit above lawyers on the most distrusted list for the public.

Having said that, I see the potential for secret algorithms to pre-determine the scope of ideas presented to us. It's a worry. And yet, the world that has been opened up to the public by the internet is still undeniably vast.

Surely the mirror image to the 24 news cycle repeating factoids/falsehoods is Wikileaks, for example, which allows citizens to verify journalism? Or what is left of journalism anyway... There is a void created by the decline in investigative journalism - no doubt - but there are some interesting ways in which that is being filled that just would not have been possible without the internet.


But Lizzie, Brianna's point - in my understanding - is less that journalists today are more prone to misinformation than journalists of the past, and more that the impact of misinformation on the public imagination is much greater in a society built around a free and instantaneous system of communications. There is actually some empirical evidence supporting this argument and, although it is not a convenient one for those of us who believe in the inherent goodness of a free and open internet, I do believe it is one we must address. True, politicians have always lied and journalists have always reported those lies, but there is merit to the contention that today's politicians have a much easier time stating factual inaccuracies and being rewarded for it - a reality largely tied to the rapid pace with which digital media alters the socio-political landscape. None of this bears any relationship to secret algorithms - the Internet itself is the source of the underlying problem.

Our response to this argument, as I understand it, is that, if the internet is made fully free and fully open, democracy will dilute objectionable content and thereby lower its impact. So this argument might proceed, the closed internet is dominated by profit-driven media outlets who report disproportionately on what produces "shock value," and - to the extent that volume of media exposure, positive or negative, is directly correlated with poll standing - there is a strong incentive for politicians to make statements that are ridiculous and dishonest. As your Wikileaks example shows, one can imagine that in a fully free and fully open internet, where the goal of profit is decoupled from the practice of journalism, the proportion of media coverage directed toward deceptive behavior would be lower, and mendacious candidates would not succeed as they do now.

That's all well and good - and I do not think Brianna disagrees with us on any of the above points - but the reality on the ground is that we do not have a fully free and fully open Internet, and there is little reason to believe that it will arrive before the November elections. I think this is where the discussion of hate speech law in the original piece comes from. We can fight for an open internet all we want, but in the meantime we should not have to accept as inevitable that politicians will be bigoted and hateful to win media coverage. It is difficult not to sympathize with this concern, even if one disagrees with the proposed solution on social libertarian grounds. As the articles I linked to indicate, simply attaching "fact-checking" disclaimers to shocking statements made by politicians does not appear to affect political outcomes, so something more drastic is needed. Based on this discussion, what I am now interested in is whether there is revolutionary potential in morally-driven journalists employed by profit-driven outlets to simply refuse to print content that is dishonest and objectionable.


'the impact of misinformation on the public imagination is much greater in a society built around a free and instantaneous system of communications' << are you sure this could be true? I would have thought, objectively, having a small number of gatekeepers who could manipulate public information flows -- which was basically how the media worked until relatively recently -- would be much more likely to increase the impact of misinformation on the public imagination. I'm not saying the internet solves all the problems of media gatekeepers and misinformation. Or that we don't have a problem. But I am not convinced the infrastructure is the problem. Or at the very least, it isn't the reason things are worse (if indeed they are worse).


The point is that I am questioning your underlying assumption that the proliferation of the Internet has led to fewer "gatekeepers" of news. That may be true for a lot of people or in topical areas unrelated to politics, but I certainly don't think Trump supporters get information about current events from a wide variety of Internet sources, and, although admittedly I have no data off the top of my head to back this up, I do not think most Americans do either. As I see it, we are talking about three separate groups here:

(1) Citizens who primarily get their news from non-Internet sources, dominated by a handful of gatekeepers ("old media")

(2) Citizens who primarily get their news from the Internet, but for whatever reason are exposed only to a handful of gatekeepers ("closed Internet")

(3) Citizens who primarily get their news from the Internet, and are exposed to a wide variety of gatekeepers ("open Internet")

I don't think anyone denies that we would rather have (3) to (1), or that we should be fighting to convert (2) to (3). The question is whether the mass transition from (1) to (2) has adversely affected the public forum. I think there is a good argument that it has, primarily because in (2) relative to (1) information moves faster and people are arguably less likely to read articles thoroughly -- both of which are products of the Internet itself.

The long-term solution is obviously to liberate the Internet. If media exposure is democratically determined, users will eventually develop more rational and tolerant belief systems. But in the meantime, most Americans are still living in the Matrix, Donald Trump is up in the polls, and, if we are the truly the shepherds of the Internet, there has to some element of taking the fight to them.


Okay but just so we are clear, I never made the presumption you said I did. I think there are still gatekeepers, though they are less powerful in the digital age. I'm just trying to work out what change is a function of the infrastructure of the web and what is caused by other factors. Or what part of the power of Trump derives from something the web has facilitated. (Or Sanders, for example? Who bucks the trend and is thriving in the polls despite getting very limited exposure from all sorts of gatekeepers, relative to Trump.)

And I'm trying to point out that while the web may facilitate such things (though I think that is questionable), it also facilitates other things.

I don't think it's quite as straightforward as you suggest above. Democracy can be a messy business and there will always be politicking and some degree of bureaucratic rules which inhibit it. I suppose it's a matter of trying to limit those latter phenomena.




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r10 - 26 Jan 2016 - 15:21:40 - LizzieOShea
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